PRIVATE DISCRIMINATION

The Constitution is a document filled with restraints upon the actions of government, but for the most part it has not been interpreted to extend its reach into the private sector. The fourteenth amendment to the Constitution, for example, guarantees the equal protection of the laws, a command against discrimination that the Supreme Court has long read as applying only to the actions of states. The Supreme Court in bolling v. sharpe (1954) applied the antidiscrimination principle to the federal government, holding that the due process clause of the Fifth Amendment contains within it an equal protection component. No provision of the Constitution, however, has ever been interpreted to apply rules of equal protection directly to private entities, prohibiting a private citizen or corporation from discriminating against others on the basis of race, sex, or religion.

Acts of private discrimination, nevertheless, do raise a number of significant constitutional issues. First, to what extent does the thirteenth amendment's abolition of slavery serve as a constitutional restraint on private acts of discrimination less severe than actual slavery? Second, when are the actions of private entities sufficiently intertwined with government to be brought within the coverage of the Fourteenth Amendment's equal protection clause under the rubric of the state action doctrine? Third, when the United States Congress forbids private discrimination, as in civil rights laws prohibiting racial bias in employment or housing, from where in the Constitution does Congress derive its affirmative authority to pass such legislation? Finally, when laws are passed at the federal, state, or local level banning discrimination by private individuals, businesses, or organizations, do such laws violate the freedom of assembly and association embodied in the first amendment ?

The Thirteenth Amendment is one of the few constitutional provisions that directly implicates private conduct. That amendment, the first of the three " civil war amendments," flatly bans slavery and involuntary servitude. It acts directly upon private entities; slaves were owned by private businesses and individuals. The Thirteenth Amendment, however, has not been interpreted to provide a significant source of constitutional proscription against acts of private discrimination. While the Amendment has been construed by the Supreme Court to protect individuals from the "badges and incidents" of slavery as well as actual slavery itself, the Supreme Court held in the civil rights cases in 1883 that the Amendment does not restrict "mere discriminations on account of race or color." The Thirteenth is thus too narrow a prohibition to be of practical use as a restraint against the types of private discrimination prevalent in modern society. In 1968, however, the Supreme Court did hold that the Thirteenth Amendment serves as an important source of congressional power to pass legislation banning private acts of discrimination.

While the equal protection clause of the Fourteenth Amendment prohibits only governmental discrimination, under the so-called state action requirement many Supreme Court decisions have recognized that ostensibly private discrimination should be treated as state action because of some connection between the private actor and the government. When the private actor is performing a "public function," for example, its activities are treated as state action, and subject to the equal protection clause. The Supreme Court has thus held that segregated primary elections conducted by political parties in Texas involved public functions and violated the Fourteenth Amendment. In marsh v. alabama (1946) the Court held that a "company town," a privately owned area encompassing both residential and business districts that looked exactly like any other town and in which the private company had assumed all the normal functions of running a city, was subject to the limitations of the First and Fourteenth Amendments. The Court has also held that apparently private activity will be treated as state action when the state and private entities have a "symbiotic relationship," as where a private restaurant leases space in a public parking garage, or when the state has commanded or encouraged acts of private discrimination.

When neither the Thirteenth Amendment nor the "state action" doctrine under the Fourteenth Amendment can be stretched to embrace a particular type of private discrimination, then the Constitution of its own force does not render the private discrimination illegal. Federal, state, and local governments may then choose to pass legislation filling this vacuum, banning discrimination through statutes and ordinances. Modern American law is pervaded with restrictions directed against private entities forbidding discrimination of all kinds, including discrimination on the basis of race, ethnic origin, sex, sexual orientation, religion, age, and physical or mental disabilities. Many of these laws are acts of Congress. When Congress attempts to outlaw private discrimination, the first constitutional question to be addressed is whether Congress has affirmative constitutional power to enact the law.

Two principal constitutional sources have been advanced to support congressional legislation banning private discrimination: the commerce clause, and Congress's powers under the enforcement clauses of the Thirteenth Amendment, Fourteenth Amendment, and fifteenth amendment. In the debates leading to the passage of the civil rights act of 1964, one of the most important modern acts of legislation dealing with private discrimination, members of Congress debated whether the act should be grounded in Congress's power to regulate interstate commerce or in its power under section 5 of the Fourteenth Amendment to enforce the Amendment by "appropriate legislation." Similar enforcement clauses exist under the Thirteenth Amendment, which abolished slavery; under the Fifteenth Amendment, which granted emancipated blacks the right to vote; and under several later amendments, including the nineteenth amendment (woman suffrage), the twenty-third amendment (voting in the district of columbia), the twenty-fourth amendment (abolition of poll taxes), and the twenty-sixth amendment, (establishing eighteen as voting age).

The Civil Rights Act of 1964 banned most significant acts of discrimination in the private sector, including such areas as employment transportation, restaurants, and hotel accommodations. Some members of Congress argued that the act should be rooted in the enforcement clause of the Fourteenth Amendment, because it was in reality an exercise in social legislation aimed at attacking racial bias. Other members, doubtful that the Fourteenth Amendment could be used to reach private discrimination, argued for buttressing the act under the well-established powers of Congress to regulate interstate commerce. In two significant 1964 decisions shortly following passage of the act, heart of atlanta motel v. united states and Katzenbach v. McClung, the Supreme Court upheld the Civil Rights Act on the basis of the commerce clause, and thus did not reach the question of congressional power under the Fourteenth Amendment.

As a practical matter, virtually any enactment of Congress aimed at private discrimination would be sustained under modern commerce clause analysis. Even localized acts of discrimination may, when considered cumulatively with other such acts around the nation, have a substantial impact on interstate commerce when aggregated. Under contemporary commerce clause theory, that potential aggregate impact would be enough to uphold the legislation. Because Congress's power under the commerce clause is so sweeping, there has been little cause for the Court to determine precisely how far congressional enforcement powers under the post-Civil War amendments may be extended to reach private-sector discrimination.

The few decisions that have dealt with congressional enforcement power under the Civil War amendments, however, indicate that Congress's power does include an ability to proscribe private activity that would not be directly prohibited by the substantive reach of the amendment itself. In an important decision involving the Thirteenth Amendment, jones v. alfred h. mayer co. (1968), the Court upheld an application of the Civil Rights Act of 1866 to forbid private discrimination in property dealings. The Court held that Congress's power to enforce the Thirteenth Amendment included the power to identify "badges or incidents of slavery" and to pass laws necessary and proper to combat them.

In sum, there are ample sources of support in the Constitution for acts of Congress banning private discrimination. Congress has passed a considerable body of laws attacking such discrimination, often including in the legislation enforcement mechanisms or procedural advantages that actually make it easier to prove and obtain legal relief from acts of private discrimination than for claims based directly on the Constitution for discrimination by the government. Modern civil rights litigation frequently involves interpretation of such legislation, in which the courts are asked to determine just how far Congress has gone in a particular statute to ban discrimination in the private sector.

The final area of modern constitutional debate concerning discrimination in the private sector involves attempts by organizations engaged in discrimination to resist the application of laws banning such discrimination on the grounds that the laws infringe on the constitutional right of free association. The Civil Rights Act of 1964, and the many state and local civil rights laws passed in the 1960s and early 1970s modeled after that act, tended to reach only commercial private activity, such as employers, or stores, restaurants, and places of lodging generally "open for business to the public." A second generation of civil rights acts began to be passed by cities and states around the country, however, seeking to forbid discrimination by "private" clubs and organizations. Several of these groups claimed that these regulations violated their constitutional rights of free association.

These claims have, thus far, proved unsuccessful. In Roberts v. United States Jaycees (1984), the Supreme Court faced a Minnesota law that prohibited sex discrimination in groups such as the Jaycees. The Supreme Court established two types of freedom of association : freedom of intimate association and "freedom of expressive association." Groups with strong claims to freedom of intimate association tend to be relatively small, exercise a high degree of selectivity, and maintain seclusion from others as critical aspects of the relationship. The Jaycees, the Court held, were basically unselective, and lacked the attributes that would qualify for recognition of intimate associational claims. The second freedom of expressive association is an incident of the freedom of speech and assembly. The Court in Roberts held that application of state sex discrimination laws to the Jaycees would not impermissibly interfere with their freedom of expressive association, and it upheld the Minnesota law.

The Court next visited the freedom of association problem in Board of Directors of Rotary International v. Rotary Club of Duarte (1987). In characterizing the Rotary Club, the Court noted that although Rotary Clubs take no positions on "public questions," they do "engage in a variety of commendable service activities" protected by the First Amendment. These sorts of activities, however, posed no serious implications for infringement of the members' rights of expressive association. The lessons of these cases appear to be that attempts by private groups to resist imposition of antidiscrimination laws on free association grounds will probably fail, unless the groups possess genuinely impressive credentials as truly private organizations, with characteristics of exclusion or intimacy bordering on those of family or religious groups.

A related problem involves private religious schools that discriminate on the basis of race. The Supreme Court in Norwood v. Harrison (1973) held that a state could not lend textbooks to schools that practice racial segregation, even though such aid to a religious school would not be illegal under the establishment clause. Notwithstanding the lack of any violation of the principle of separation of church and state, the Court held that there is no constitutional protection for state aid to racial discrimination. In bob jones university v. united states (1983), the Court held that the Internal Revenue Service had been authorized by Congress to deny tax-exempt status to private schools that discriminate on a racial basis, and that this denial did not prohibit the free exercise of religion.

Modern constitutional law, in conclusion, generally does not impose restraints on private discrimination through direct application of the Constitution itself. On the other hand, by refusing to recognize any significant constitutional barriers to antidiscrimination legislation, modern constitutional law facilitates efforts on the part of federal, state, and local governments to eradicate such discrimination.

Rodney A. Smolla
(1992)

(see also: Affirmative Action; Badges of Servitude; Employment Discrimination; Fourteenth Amendment and Section 5 (Framing); Fourteenth Amendment and Section 5 (Judicial Construction); Racial Quotas; Racial Preference.)